43.

Generally, there exists a special relationship between a hospital and its staff and the patients through which the patients expect certain protection against harm by third parties. However, to hold the hospital and its staff liable for physical assault on the patients by intruders, plaintiffs have to prove that the harm could have been foreseen. If there were other prior instances of assaults on other patients, the harm can be said to be foreseeable.

Patients in your custody have a right to be safe and secure from assaults by outsiders. If you know that the current conditions make such attacks likely or foreseeable, you would be held liable.

Facts: Patient K. L. entered the adult chemical dependency unit at Riverside Medical Center in Minneapolis. While K. L. was suffering from alcohol withdrawal, someone knocked on her door and said, "K". When she answered, a well-dressed man came into her room and asked how old she was. When K. L. said she was 49, the man, later identified as Arron Ghebrezghi, said, "You're a nice looking lady for 49 years old." After Ghebrezghi said she he was a chiropractor and asked K. L. if she would like a back rub, she said she would. She turned over on her stomach and Ghebrezghi rubbed her back.

Ghebrezghi then asked if he could shut the door and started to get up to do so. K. L. told him he could not shut the door and that patients were not allowed to shut their doors. Ghebrezghi then returned, put his penis on the bed, took K. L.'s hand, and said, "Here, put your hand on this." When K.L. threatened to call the nurse, Ghebrezghi said, "No. No. No. I'm going." He then left. K.L. did not immediately report the assault.

The next day, K.L. again saw Ghebrezghi in the smoking lounge of the of the chemical dependency unit. She ran to the nurse's station to report Ghebrezghi's assault, but did not follow through because the nurse she asked for was not available. K.L. then went downstairs on an errand, where she saw Ghebrezghi standing by the hospital's main entrance. Thinking Ghebrezghi was stalking her, K.L. ran back to the nurse's station and reported the assault to the nurse she had asked for earlier. It is Riverside's policy to investigate any patient's report of inappropriate touching, regardless of whether the staff believes the report. Despite this policy, the nurse did not initially report the incident, believing K. L. had hallucinated. The incident was not reported to Riverside security until the following day.

Four days after the assault, K. L. saw Ghebrezghi again. A patient who was aware of the assault immediately notified security of Ghebrezghi's and he was arrested.

Patient brought suit against the hospital. At the conclusion of K. L.'s case, the trial court granted Riverside's motion for a directed verdict, finding that Ghebrezghi's conduct was unforeseeable and, therefore, Riverside had no duty to protect K.L. from Ghebrezghi. K.L. appeals, challenging the directed verdict and trial court's evidentiary rulings.

Court Decision: David Hiers, Riverside's Director of Operations, testified that the nature of the chemical dependency unit requires openness. Many people come to visit patients, and the patients must be free to come and go. On cross-examination, Hiers admitted there was no procedure to check the identity of visitors to the unit; although a name tag policy was "religiously" followed for staff and patients, it was not followed for visitors. Furthermore, nonstaff physicians, psychologists, and counselors did not have to wear name tags while at the chemical dependency unit. Ghebrezghi, who had no legitimate reason to be in the unit, was never asked to wear a name tag.

Lynn Bower, the nursing manager of the chemical dependency unit, said that any unfamiliar person without a name tag was stopped at the front desk into the chemical dependency unit. It was, however, possible to get on the unit without walking by the front desk; in addition, if the people at the front desk were busy with other duties, they might not ask for identification.

K.L. called Lawrence Talley as a security expert. Talley reviewed security logs from October 15 to December 13, 1989. In that period, there were 18 incidents, counting K.L.'s, in which Riverside's security responded to calls about suspicious persons. Some of these involved persons in patient rooms and restricted areas. No report involved violence or threats to patients.

Generally, a person has no duty to control the conduct of a third person to prevent injury to another. Whether Riverside had a duty to protect K.L. from Ghebrezghi's assault depends on two factors: (1) the existence of a special relationship between Riverside and K.L. giving K.L. the right to protection; and (2) the foresee ability of the harm that resulted. Riverside concedes it had a special relationship with K.L. The question is whether Ghebrezghi's conduct was foreseeable.

The harm to K.L. can be said to be foreseeable if Riverside was aware of facts indicating that patients had previously been exposed to an unreasonable risk of harm. Acts such as Ghebrezghi's sexual assault on K.L. Acts such as Ghebrezghi's sexual assault on K.L. will rarely be deemed foreseeable in the absence of prior similar incidents. Although there were numerous reports of suspicious persons on the hospital grounds, there was no evidence that there had been assaults on patients while in their rooms. Lynn Bower testified that this was the only time in her 24-year nursing career that a person had come off the street and harmed a patient.

Here, there is no evidence that the hospital knew Ghebrezghi had been behaving suspiciously on prior occasions. At the time of the incident, K.L. testified that Ghebrezghi was very neatly dressed; she thought he was a doctor or a counselor. When Ghebrezghi earlier asked David Hiers, Riverside Director of Operations, for confidential patient information, Hiers was not suspicious because of Ghebrezghi's neat appearance.

The evidence shows that there were no previous assaults on patients at Riverside, that Ghebrezghi himself had never behaved suspiciously in the past, and that previous reports of trespassers and suspicious persons had not involved assaults upon patients. Given these facts, we conclude that it was not foreseeable that K.L. would be exposed to an unreasonable risk of harm from Ghebrezghi's.

Whether a duty will be imposed is ultimately a policy question. One consideration is the cost-benefit equation. The question is whether the foreseeable likelihood of harm warrants the burden imposed to prevent that harm. Posting guards at each entrance to each building on the Riverside campus might decrease the threat of random assaults on patients.
But the cost would be grossly out-of-proportion to the security gained.

The trial court did not err in holding that Riverside had no duty to prevent Ghebrezghi's assault on K.L.

K.L. v. Riverside Medical Center, 524 N.W. 2d 300 (Minnesota, App. 1994)

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